SSRN Author: Meghan J. RyanMeghan J. Ryan SSRN Contenthttp://www.ssrn.com/author=939211
http://www.ssrn.com/rss/en-usMon, 28 Nov 2016 21:30:36 GMTeditor@ssrn.com (Editor)Mon, 28 Nov 2016 21:30:36 GMTwebmaster@ssrn.com (WebMaster)SSRN RSS Generator 1.0REVISION: Lessons from GitmoI recently returned from a trip to Guantanamo Bay Naval Base, where I spent a week at Camp Justice — the site of the Military Commissions proceedings for the alleged terrorists and war criminals who have been held on the base since the “War on Terror” began after 9/11. I was observing military commission proceedings in the case of high-value detainee Abd al Hadi al-Iraqi, who was allegedly “one of Osama bin Laden’s closest advisors.” He has been charged with “Denying Quarter, Attacking Protected Property, Using Treachery or Perfidy, and Attempted Use of Treachery or Perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and Conspiracy to commit law of war offenses.” I was tasked with observing the proceedings to ascertain whether they comply with human rights principles and relevant rules of law. During the course of this weeklong adventure, I learned a number of Guantanamo lessons, which I detail in this brief essay. http://www.ssrn.com/abstract=2659901
http://www.ssrn.com/1534456.htmlMon, 10 Oct 2016 10:07:43 GMTREVISION: Taking Dignity Seriously: Excavating the Backdrop of the Eighth AmendmentThe U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means. This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and ... http://www.ssrn.com/abstract=2792217
http://www.ssrn.com/1533999.htmlSat, 08 Oct 2016 04:34:09 GMTREVISION: Miranda's Truth: The Importance of Adversarial Testing and Dignity in Confession LawThe landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by our truth-beyond-a-reasonable-doubt standard of proof in criminal cases. Although truth-finding is important, adversarial testing and human dignity remain essential, and it is crucial that these values not be sacrificed by exclusive concentration on the alluring value of truth-finding. http://www.ssrn.com/abstract=2815161
http://www.ssrn.com/1518258.htmlTue, 09 Aug 2016 11:18:09 GMTREVISION: Miranda's Truth: The Importance of Adversarial Testing and Dignity in Confession LawThe landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by our truth-beyond-a-reasonable-doubt standard of proof in criminal cases. Although truth-finding is important, adversarial testing and human dignity remain essential, and it is crucial that these values not be sacrificed by exclusive concentration on the alluring value of truth-finding. http://www.ssrn.com/abstract=2815161
http://www.ssrn.com/1515883.htmlThu, 28 Jul 2016 08:41:23 GMTREVISION: Taking Dignity Seriously: Excavating the Backdrop of the Eighth AmendmentThe U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means. This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and ... http://www.ssrn.com/abstract=2792217
http://www.ssrn.com/1503918.htmlSat, 11 Jun 2016 15:23:43 GMTREVISION: Voices on InnocenceIn the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless. As the group, representing various perspectives, disciplines, and areas of research, discussed these and other questions, it also considered the role of innocence in the criminal justice system more ... http://www.ssrn.com/abstract=2747604
http://www.ssrn.com/1488927.htmlTue, 19 Apr 2016 13:42:41 GMTREVISION: Voices on InnocenceIn the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless. As the group, representing various perspectives, disciplines, and areas of research, discussed these and other questions, it also considered the role of innocence in the criminal justice system more ... http://www.ssrn.com/abstract=2747604
http://www.ssrn.com/1478986.htmlTue, 15 Mar 2016 04:59:58 GMTREVISION: Cultivating Judgment on the Tools of Wrongful ConvictionWrongful conviction remains a vexing problem. There are hundreds of reports of wrongful convictions from across the country, and the reasons for these mistakes run the gamut from faulty forensic science, to mistaken eyewitness identifications, to police or prosecutor misconduct. Yet establishing the legal or factual error necessary to achieve exoneration in these cases can be tremendously difficult. Wrongfully convicted defendants face a number of hurdles. Not only must they discover significant factual or legal error, but they also are straightjacketed by procedural impediments and appellate judges’ limited abilities to right wrongful convictions. Wrongfully convicted defendants are further constrained by a generally limited understanding of the sources of wrongful conviction and some legal decisionmakers’ reluctance to accept the significance of the wrongful conviction problem.
This Article outlines the major contributors to wrongful conviction and describes some procedural ... http://www.ssrn.com/abstract=2719204
http://www.ssrn.com/1464145.htmlTue, 26 Jan 2016 11:46:33 GMTREVISION: Taking Another Look at Second-Look SentencingA historically unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed. These evolved societal views, the drafters have asserted, might justify reducing the offenders’ sentences. The drafters of the Code have suggested that this position is based in part on ... http://www.ssrn.com/abstract=2709485
http://www.ssrn.com/1464143.htmlTue, 26 Jan 2016 11:44:48 GMTREVISION: Lessons from GitmoI recently returned from a trip to Guantanamo Bay Naval Base, where I spent a week at Camp Justice — the site of the Military Commissions proceedings for the alleged terrorists and war criminals who have been held on the base since the “War on Terror” began after 9/11. I was observing military commission proceedings in the case of high-value detainee Abd al Hadi al-Iraqi, who was allegedly “one of Osama bin Laden’s closest advisors.” He has been charged with “Denying Quarter, Attacking Protected Property, Using Treachery or Perfidy, and Attempted Use of Treachery or Perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and Conspiracy to commit law of war offenses.” I was tasked with observing the proceedings to ascertain whether they comply with human rights principles and relevant rules of law. During the course of this weeklong adventure, I learned a number of Guantanamo lessons, which I detail in this brief essay. http://www.ssrn.com/abstract=2659901
http://www.ssrn.com/1464123.htmlTue, 26 Jan 2016 11:42:27 GMTREVISION: Lessons from GitmoI recently returned from a trip to Guantanamo Bay Naval Base, where I spent a week at Camp Justice — the site of the Military Commissions proceedings for the alleged terrorists and war criminals who have been held on the base since the “War on Terror” began after 9/11. I was observing military commission proceedings in the case of high-value detainee Abd al Hadi al-Iraqi, who was allegedly “one of Osama bin Laden’s closest advisors.” He has been charged with “Denying Quarter, Attacking Protected Property, Using Treachery or Perfidy, and Attempted Use of Treachery or Perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and Conspiracy to commit law of war offenses.” I was tasked with observing the proceedings to ascertain whether they comply with human rights principles and relevant rules of law. During the course of this weeklong adventure, I learned a number of Guantanamo lessons, which I detail in this brief essay. http://www.ssrn.com/abstract=2659901
http://www.ssrn.com/1463350.htmlSun, 24 Jan 2016 21:46:48 GMTREVISION: Cultivating Judgment on the Tools of Wrongful ConvictionWrongful conviction remains a vexing problem. There are hundreds of reports of wrongful convictions from across the country, and the reasons for these mistakes run the gamut from faulty forensic science, to mistaken eyewitness identifications, to police or prosecutor misconduct. Yet establishing the legal or factual error necessary to achieve exoneration in these cases can be tremendously difficult. Wrongfully convicted defendants face a number of hurdles. Not only must they discover significant factual or legal error, but they also are straightjacketed by procedural impediments and appellate judges’ limited abilities to right wrongful convictions. Wrongfully convicted defendants are further constrained by a generally limited understanding of the sources of wrongful conviction and some legal decisionmakers’ reluctance to accept the significance of the wrongful conviction problem.
This Article outlines the major contributors to wrongful conviction and describes some procedural ... http://www.ssrn.com/abstract=2719204
http://www.ssrn.com/1462805.htmlFri, 22 Jan 2016 08:25:48 GMTREVISION: Taking Another Look at Second-Look SentencingA historically unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed. These evolved societal views, the drafters have asserted, might justify reducing the offenders’ sentences. The drafters of the Code have suggested that this position is based in part on ... http://www.ssrn.com/abstract=2709485
http://www.ssrn.com/1456854.htmlFri, 01 Jan 2016 05:10:17 GMT